Who Should Reign Supreme?

Reason asks libertarian legal experts: Who are your favorites--past, present, and future--on the nation's highest court?

During the next three years, George W. Bush will certainly nominate one and perhaps as many as three new Supreme Court justices. Any one of those nominations could set off a battle comparable to the political donnybrooks over Clarence Thomas and Robert Bork; just one could be enough to shift the balance of power on the bench.

With senatorial filibustering over lower-court appointees filling the headlines as of print time, we'll leave the question of what will happen for another day. For our special courts issue, we asked several legal experts whom they'd like to see on the court. We also asked whom they liked best on the current court and who was their favorite Supreme Court justice of all time. Our participants range from the far left to the hard right, but they're all libertarians in whole or in part.

A lawyerly bunch, some respondents chose not to answer every question (we're not sure why, but those with cases pending in front of the Court seemed especially reluctant to name a current fave), but they all gave us interesting–and sometimes radically different–responses.

Andrew Napolitano

Napolitano, the youngest life-tenured Superior Court judge in New Jersey history, is a senior judicial analyst for Fox News and the author of Constitutional Chaos (2004).

Nominees for the Court: Judge Alex Kozinski, U.S. Court of Appeals for the 9th Circuit; Robert George, McCormick Professor of Jurisprudence, Princeton University; Ron Paul, U.S. House of Representatives (R-Texas).

All three of my nominees share some truly invaluable traits. Each has successfully triumphed over a form of tyranny: Kozinski escaped from Eastern European communism, George neutralized a liberal Princeton faculty, and Paul has resisted the Republican House leadership. Each believes the Constitution means what it says; that is, that the federal government is legally limited to the 18 specific powers given to it in the Constitution, and that the rights enumerated in the Bill of Rights are in fact guaranteed and cannot be taken away by Congress or the executive branch. They all hold that life begins at conception. They also believe that our rights are pre-political, hence natural, hence they come from God, not the government, not the consent of the governed, and not from any other source. Finally, and just as important as all of the above, each of my nominees possesses great personal courage.

Favorite sitting Supreme Court justice: Antonin Scalia, for writing in Printz v. United States (1997) that the Constitution confers upon the Congress "not all governmental powers, but only discrete, enumerated ones."

All-time favorite Supreme Court justice: George Sutherland, for writing in his dissent in Home Bldg. & Loan v. Blaisdell (1934) that "whether the legislation under review is wise or unwise is a matter with which we have nothing to do. Whether it is likely to work well or work ill presents a question entirely irrelevant to the issue. The only legitimate inquiry we can make is whether it is constitutional. If it is not, its virtues, if it have any, cannot save it; if it is, its faults cannot be invoked to accomplish its destruction. If the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned."

Nadine Strossen

Strossen is a professor at New York Law School and the president of the American Civil Liberties Union.

Favorite sitting Supreme Court justice: David H. Souter. His well-researched, thoughtful opinions reflect the kind of classic conservatism that respects individual freedom and restricts government power to undermine it. His opinions also make clear that he is conscientiously engaging in intellectually honest, rigorous analysis, applying governing precedents and principles to the particular facts, rather than providing post hoc rationalizations for conclusions that result from personal policy preferences. Consistent with this open-minded approach, he has candidly acknowledged in an opinion that, upon further research and reflection, he realized that one of his votes in a prior case was wrong. (This was 2000's City of Erie v. Pap's AM, in which he confessed error regarding his prior vote in Barnes v. Glen Theatres [1991]. Both had to do with the question of whether nude dancing was protected as free expression under the First Amendment. In Pap's, he said he hadn't learned anything about nude dancing since Barnes, but he'd learned a lot about the First Amendment since then.) Accordingly, his opinions demonstrate how important it is to maintain the independence of the federal judiciary, relatively insulated from majoritarian political pressures.

All-time favorite Supreme Court justice: Louis Brandeis. His inspiring opinions concerning free speech and privacy continue to provide the most eloquent, enduring justifications not only for these particular freedoms but also for civil liberties in general. The rationales of these opinions apply to particular factual circumstances he could not have foreseen, since the opinions recognize in general that there will be future technological developments and threats to national security that will be invoked as purported justifications for restraining fundamental rights.

Richard Epstein

Epstein is a professor of law at the University of Chicago and author, most recently, of Skepticism and Freedom: A Modern Case for Classical Liberalism (2003).

All-time favorite Supreme Court justice: My hidden favorite is Mahlon Pitney, who served with both Louis Brandeis and Oliver Wendell Holmes (between 1912 and 1922) and consistently outdueled them on key issues dealing with freedom of contract.? Widely discredited or ignored, he wrote such key decisions as Coppage v. Kansas (1915), which held that employers on railroads could not be forced to bargain collectively; Hitchman Coal v. Mitchell (1917), which held unions liable for tortious interference with contract when they urged workers to remain on the job after joining the union, when they had promised to quit if they did so; New York Central RR Co. v. White (1917), which upheld workers' compensation laws against federal challenges; and International News Service? v. Associated Press (1918), a seminal case on the common law tort of misappropriation.

Mike Godwin

Contributing Editor Godwin is legal director of Public Knowledge.

Favorite sitting Supreme Court justice: I'm happy with John Paul Stevens, who wrote the opinion of the Court in the Communications Decency Act case, Reno v. ACLU (1997). Stevens was responsible for the unfortunate plurality decision in FCC v. Pacifica (1978), which gave us the problematic notion of broadcast "indecency." But he redeemed himself in Reno v. ACLU, when he led the Court in refusing to extend that notion to the Internet. It's true that the Court struck down the CDA in a 9-0 vote, but it meant a lot that Stevens was the one who corralled the runaway indecency doctrine before it stampeded over the new democratic power of the Internet. Stevens also wrote the Court's majority opinion in Universal City Studios v. Sony (1984). That case, which found that VCRs, and by implication other recording and transfer technologies, are lawful if they are capable of substantial use that does not infringe on copyrights, set the stage for 20 years of accelerating technological innovation, from the iPod to TiVo.

All-time favorite Supreme Court justice: Chief Justice John Marshall is an easy pick, so I won't pick him. Instead, I'd like to draw your attention to Louis Brandeis, one of the finer, more thoughtful pens to write Supreme Court dissents. His comments about speech and privacy are so good that they ring true today. Here's Brandeis on freedom of speech in Whitney v. California (1927): "Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. It is the function of speech to free men from the bondage of irrational fears." And here's Brandeis on wiretapping in Olmstead v. U.S. (1928): The Framers "conferred, as against the Government, the right to be let alone–the most comprehensive of rights and the right most valued by civilized men." Brandeis understood things about individual liberty and autonomy that many more-modern justices don't.

David Post

Post is a professor of law at Temple University and a former clerk for Justice Ruth Bader Ginsburg.

Nominees for the Court: Richard Posner, U.S. Court of Appeals for the 7th Circuit. He has an obviously formidable intellect–his new-book-every-six-months routine is testament to that. And though his law-and-economics approach can sometimes be doctrinaire and rigid, he would bring a kind of intellectual vitality to the Court that could help shake up some old ideas that take root from time to time.

Steve Williams and David Tatel, both judges on the U.S. Court of Appeals for the D.C. Circuit. They have the same thing that Posner has: brilliance, and they're not afraid to go where their intellect leads them. Williams is a libertarian conservative, Tatel a Clintonian liberal; it's why they make a good pairing.

Harvard President Larry Summers. I'm being only half-facetious. Summers might find a job with life tenure quite attractive these days, and I've long thought that having one or two non-lawyers on the Court would be a good thing. "The life of the law," Holmes wrote, "is experience," and he was right–you don't need to have been inducted into the priesthood to understand the issues in the vast majority of cases (and in any event, that's why you have lawyers representing both sides, to explain to you precisely what they think the issues are). Summers is just the kind of guy you'd want there; like Posner, Williams, and Tatel, he's not afraid to turn things upside down and think about them in new ways. In fact, I'd take my chances with a court composed of these four.

Favorite sitting Supreme Court justice: It's gotta be Ruth Ginsburg. Not only because I clerked for her (twice, actually–once on the D.C. Circuit, once at the Supreme Court), but because she's judicious, in the best sense of that word–careful, thoughtful, fair. Second place goes to Scalia, probably because he's not careful, thoughtful, or (particularly) fair, only brilliant. If I had to choose the collected opinions of one sitting justice to take with me to the desert island, it would have to be Scalia; he's the Great Dissenter of this generation (e.g., read his truly devastating analysis in dissent in the recent case declaring execution of juveniles unconstitutional).

All-time favorite Supreme Court justice: Oliver Wendell Holmes. He wrote prose like an angel. Before Holmes, legal opinions read like they had been translated into English from some other language; Holmes wrote muscular, modern English, and he transformed the entire form for the better, almost single-handedly.

While he was deeply and profoundly skeptical about human beings and their affairs, he was never cynical; though he understood perfectly well that judges did not reveal Truth, or Platonic Justice, but simply worked out more (or sometimes less) reasonable accommodations between competing interests, he never allowed that to get in the way of his obligations as a judge to render the best justice he could in any given case. And his great free speech dissents (with Brandeis, usually) are the most eloquent modern defenses of the central role the First Amendment must play in our political system.

Larry Klayman

Klayman is chairman and general council of Judicial Watch.

Nominees for the Court: Of those mentioned as likely picks, I like Judge Alex Kozinski of the 9th Circuit and Judge J. Michael Luttig of the 4th Circuit. I have appeared in front of both of them on several occasions, and both are independent-minded conservatives who are not afraid to put a check on abusive government behavior and power. Kozinski is even brave enough to rule against abusive judicial conduct in disciplinary proceedings. In a case I had before Luttig, he was highly critical of the Internal Revenue Service's abusive tactics.

While he hasn't been mentioned as a possible nominee, I also like Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia, who presided over many of my cases against the Clinton administration. He is an iconoclast who has a healthy skepticism of government power and, like Kozinski and Luttig, is sensitive to the needs of the common man, a trait sometimes lacking in conservatives. Lamberth was the judge who allowed me to take discovery in a simple FOIA case against the Clinton Commerce Department. It was this case that exposed and triggered the campaign finance/Chinagate scandal.

Favorite sitting Supreme Court justice: I really do not have one, but of those on the bench I would say Justice Clarence Thomas, who is also a friend. He can sometimes be overly simplistic, ? la Scalia, in his reading of the Constitution, but he does have a fear of government power. This was no doubt reinforced by his own experience.

All-time favorite Supreme Court justice: Chief Justice John Marshall is my favorite, and not just because he was chosen by my favorite founding father, John Adams, who believed that without ethics and morality there will be no lasting liberty. While Marshall was a Federalist and I believe in "states' rights," his affirmation of federal power as the supreme law of the land was important in the early days of our nation. And Marshall believed, as I do–and this is not typically conservative–that the judiciary is perhaps the most important branch of government. Indeed, this is why I founded Judicial Watch: to not only watch the judiciary, because it is so important, but to use it to guard against the tyranny of the other two branches. Judges are our most important public servants, and they can use their power wisely or, as is often the case, unwisely. But they are necessary, within constitutional limits, to serve as a check on the abuse of government and tyranny among ourselves.

Siva Vaidhyanathan

Vaidhyanathan is an assistant professor of culture and communication at New York University and the author of Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity (2001) and The Anarchist in the Library: How the Clash between Freedom and Control is Hacking the Real World and Crashing the System (2004).

Nominees for the Court: Bill Clinton. If only he had not been disbarred! The Court needs a persuasive politician on it right now. In the tradition of John Marshall, Hugo Black, and Earl Warren, Clinton could steer disparate justices toward a common goal. He is a master compromiser and a true moderate in a country that seems to lack them. Plus, the Supreme Court is one of the last places in American life where being a polymath pays off. No one is a quicker study than Clinton.

Cass Sunstein. Sunstein is an accomplished author and professor at the University of Chicago School of Law. He is a true moderate with a reasonable (i.e., not fundamentalist) view of free speech and a healthy respect for the Necessary and Proper Clause of the Constitution. He is brilliant and persuasive.

Kathleen Sullivan. The former dean of Stanford Law School is a master litigator and one of the world's leading experts on civil liberties. She would bring a fresh perspective at a time when civil liberties are at best taken for granted, at worst under concerted attack. She is also well-versed in technology and intellectual property issues, having argued such cases in federal court and presided over the premier law school in Silicon Valley, if not the world.

Favorite sitting Supreme Court justice: John Paul Stevens. I'm very nostalgic about the Court of the '70s, and he's the one who triggers the most nostalgia. He's got great institutional wisdom, a deep memory, and a sense of the Court's place in the world. He's also been steady and consistent in his jurisprudential vision. I've always enjoyed reading his opinions.

All-time favorite Supreme Court justice: Louis Brandeis. He did the most to move the court into the modern age and helped make it flexible and forward looking. You can't find a stronger civil libertarian. And he had a good style of forging consensus, but he wasn't afraid to be a strong dissenter either. Much of the most interesting reading to come out of the 20th-century Court is Brandeis dissents.

Randy Barnett

Barnett is a professor of law at Boston University and the author, most recently, of Restoring the Lost Constitution (2003). He represented the respondents in Ashcroft v. Raich before the Supreme Court this term.

All-time favorite Supreme Court justice: Most famous Supreme Court opinions either stretched clauses beyond their original meaning to authorize governmental power or interpreted textual barriers out of existence. Given this history, I have no Supreme Court heroes. But Justice Rufus Peckham (1838?1909) authored the opinion in Lochner v. New York (1905), one of the few decisions in which the Supreme Court exhibited skepticism about a claim of governmental power and protected a liberty not included in the Bill of Rights. By placing the burden on the state to justify its restriction on the liberty of contract in the form of a maximum hours law for bake shop employees (but not owners), Peckham in effect employed a presumption of liberty, which I think should be used to protect all liberties. On the other hand, Peckham silently joined the 8-to-1 majority in Plessy v. Ferguson (1896). As I said, I have no Supreme Court heroes.

Chip Mellor

Mellor is president and general counsel of the Institute for Justice.

Nominees for the Court: Pepperdine law professor Douglas Kmiec would be sympathetic on many libertarian issues; not flag burning or some national security issues, perhaps, but economic liberty certainly.

Justice Janice Brown of the California Supreme Court would be terrific.

A dose of Richard Epstein on the Court could only be good for America, even if pretty disruptive in the short term.

Favorite sitting Supreme Court justice: I don't really have a favorite, but I certainly admire Justice Clarence Thomas for his intellectual integrity and willingness to go to first principles and articulate those in a direct and thoughtful way.

All-time favorite Supreme Court justice: I don't think I could pick a particular justice, but there are opinions and dissents I like a great deal. The dissents in the Slaughterhouse Cases (1873) by Justices Joseph Bradley and Stephen Field were clear and insightful in their defense of individual rights, here economic liberties.

Harvey Silverglate

Silverglate is a Boston-based criminal defense and civil liberties litigator and writer.

Nominees for the Court: Eugene Volokh, UCLA Law School, because he is a consistent and forceful defender of First Amendment rights and, in particular, has a deep understanding of how "harassment" law poses a mortal danger to free speech and free thought in academia and in the workplace.

Judge Frank H. Easterbrook, 7th Circuit, because, as a principled conservative, he wrote the profound opinion in American Booksellers Association v. Hudnut (1985) and tore the "civil rights protection" facade off an ordinance that sought to censor protected speech. This opinion was summarily affirmed, without dissent, by the Supreme Court.

Judge Nancy Gertner, U.S. District Court in Boston, because, as a principled liberal and a former criminal defense, civil rights, and civil liberties trial lawyer, she understands the realities of the system but refrains from going beyond the proper role of a judge in changing it. She delivers impartial, honest, fair, and realistic justice to the extent allowed by the law.

Favorite sitting Supreme Court justice: Antonin Scalia. He is willing to say that when a constitutional right appears on its face to be absolute, it is entitled to be enforced despite the government's breathless claims that enforcement will mean the collapse of the Republic. His decision in last summer's "enemy combatant" case–charge and try him or release him–cut through the nonsense and obfuscations that appeared to dazzle the other justices. Despite Scalia's blind eye on the subject of religion, he lends important heft to the enforcement of certain crucial rights much in danger during the current "war on terror."

All-time favorite Supreme Court justice: Robert Jackson. His magisterial opinion for the Court in West Virginia Board of Education v. Barnette (1943), decided in the middle of a world war and reversing a "patriotic" precedent only three years old, proclaimed the right of Jehovah's Witness children to refuse to pledge allegiance to the flag, thereby securing in one fell swoop the First Amendment rights to freedom of speech, religion, and conscience. He was one of the most powerful and elegant writers ever to sit on the Court, and he put his magnificent talent to work in support of a broad and deep vision of liberty.

Nat Hentoff

Hentoff, a nationally syndicated columnist, writes regularly for both the Village Voice and The Washington Times. His most recent book is The War on the Bill of Rights and the Gathering Resistance (2003).

Nominees for the court: The first is John Noonan of the 9th circuit, who is just the fairest jurist I've ever known of. The second is Jack Weinstein. He is a federal district judge in Brooklyn, and he is a judge who really believes in judging in the interest of justice. The third is David Cole, a professor of constitutional law at the Georgetown University Law Center in Washington. He is a superb interpreter and has a historical knowledge of the Constitution, so he'd be a valuable member of the bench.

All three believe and act on the idea spelled out in the 14th Amendment: Everybody is entitled to due process of law and to equal protection of the laws. They can't be categorized as either conservative or liberal, but they are all very much concerned with civil liberties. During this war on terror which has no foreseeable end, supporting the protection of individual liberties against the government is a very important requirement for anybody on the Supreme Court.

Favorite sitting Supreme Court justice: That's hard, because I'm really not a fan of any of them. I would say Anthony Kennedy, because he at least has the ability to get out of any particular kind of category of conservative/liberal and think for himself. I wish he did it more often.

All-time favorite Supreme Court justice: It's gotta be a tie: William O. Douglas and William Brennan. Both were champions of the Bill of Rights, and we are Americans because of the Bill of Rights.

Michael McMenamin

Contributing Editor McMenamin is a lawyer in Cleveland.

Nominees for the Court: The late Republican Sen. Roman Hruska once famously said, in support of a failed Nixon Supreme Court nominee, that mediocre people deserve representation on the Supreme Court too. Be careful what you wish for. The concept of a "representative" Supreme Court is as unfortunate as it is extra-constitutional, but it has become the norm in the last 30 years. That, coupled with the partisan response of the Senate to all Supreme Court nominees from a president of the opposite party, has fulfilled Hruska's wish. There have always been a few hacks on the Supreme Court, but the last three decades have seen an almost unprecedented parade of compromise choices of undistinguished jurists, none of whom had established much, if any, of a judicial reputation before their elevation to the bench. Few on the highest bench today have managed to rise above their humble and obscure origins.

My three choices go against this grain. They have a record and a reputation. Regardless of whom they replace, the average intellect and integrity level of the Supreme Court would be increased by their presence. For that reason, among others, you will get really good odds in Las Vegas by placing your bets on them but don't bet more than you can afford to lose.

My first choice is Alex Kozinski of the 9th Circuit, a Reagan appointee and the immigrant child of Holocaust survivors whose father was a minor Communist Party functionary in East Europe. He is the most libertarian federal judge in the country and easily the most entertaining writer, being the founder, president, and sole member of OOPPSSCA (Organization of People Patiently Seeking Supreme Court Appointment). Even when Kozinski is dead wrong (e.g., extolling the virtues of snowboarding over those of skiing), he's fun to read and his judicial opinions are clear and consistent.

My second choice is Richard Posner, 7th Circuit U.S. Court of Appeals, another Reagan appointee who is a brilliant Chicago school law and economics scholar as well as an engaging and even more prolific writer than Kozinski. As with Kozinski, you don't always agree with his decisions, but his opinions are always clear and consistent. Sanity on the Supreme Court regarding antitrust law was achieved in large part because they had Posner's opinions to guide them.

My third choice, also a Reagan appointee, is a trial judge, 74-year-old Robert Douman from the Eastern District of Virginia. Lawyers who appear before him describe Douman as "exceptionally bright," "a really brilliant guy," "an honest guy who says what he thinks," "a very talented and learned guy." I like him because he had the guts to tell John Ashcroft's Department of Justice three times that they couldn't hold an American citizen (Yaser Hamdi) indefinitely without access to a lawyer. The Supreme Court eventually agreed with Douman, but his opinions read better.

Favorite sitting Supreme Court justice: Clarence Thomas. He has displayed incredible personal courage and integrity. He speaks frequently to African-American groups, especially young people, and never has a U.S. marshal confiscate a journalist's recordings, as happened with his colleague Antonin Scalia. Plus he's the best writer on the Court (notwithstanding the opinion of functionally illiterate Senate Minority Leader Harry Reid) and the one most attuned to protecting individual economic as well as civil liberties.

All-time favorite Supreme Court justice: The first John Marshall Harlan, a brilliant Kentucky jurist appointed by Rutherford B. Hayes. Harlan was the sole dissenting vote in the shameful 1896 decision Plessy v. Ferguson, which created the "separate but equal" doctrine to justify segregation, a decision used by Woodrow Wilson to undo the nascent desegregation in government facilities begun by his Republican predecessors Theodore Roosevelt and William Howard Taft.

Judge Jim Gray

Gray, a trial judge in Orange County, California since 1983, is the author of Why Our Drug Laws Have Failed And What We Can Do About It (2001).

All-time favorite Supreme Court justice: My all-time favorite U.S. Supreme Court justice is Louis D. Brandeis, who understood and acted upon Ben Franklin's warning that one who would trade a little bit of liberty for a little bit of security deserves neither. Brandeis was and is an effective voice for liberty against the intrusion of the government.

For example, in Olmstead v. United States (1928), which was the first wiretap case in Supreme Court history, Justice William Howard Taft wrote for the Court that a wiretap was not a "physical entry," and by speaking on a telephone, defendant Olmstead might just as well have been broadcasting to the world. In his dissent, Brandeis argued that "the progress of science and invention will make it possible for the government, by means more effective than the rack, to obtain disclosure in court of what is whispered in the closet."

Since that time, Brandeis' dissent in Olmstead has gradually evolved into controlling law in personal privacy cases such as Griswold, Estes, Miranda, and Katz. We owe this great justice a great debt, and he is my hero.